Upload
phungnhu
View
218
Download
0
Embed Size (px)
Citation preview
ACTUAL IMPUNITY - WHEN LAWS ARE NOTHING BUT PAPER PROMISES
I.P.O.N. – International Peace Observers Network | Volume 4 | Number 2 | November 2012
3EUR
ISSN: 2192-3353
2 OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012
OBSERVER:
A JOURNAL ON THREATENED HUMAN RIGHTS DEFENDERS
IN THE PHILIPPINES
EDITORIAL BOARD
Carmen Albers, Jacqueline Andres, Lukas Bauer, Anna Hollendung
Layout: Asja Caspari, Anna Hollendung
Benedikt Kratz (Cover), Josef Gassebner (Cover Image)
Proofreading: Carmen Albers, Stephanie Berry, Mira Florian
Luca Martin, Martin Wende
EDITOR
I.P.O.N. International Peace Observers Network
Floria-Geyer-Str. 89
12489 Berlin, Germany
www.ipon-philippines.info
OFFICE ADDRESS IN THE PHILIPPINES
IPON, c/o Cyrus A. Ellorin,
Ruiz Street, Sumpong
8700 Malaybalay
phone: +63 [0] 9393205776
68 Florida Street, Brgy. Villamonte
6100 Bacolod City
phone: +63 [0] 34 7040185
ISSN 2192-3353
PRICE single issue 3.00 Euro
SUBSCRIPTION INFORMATION
OBSERVER: is published biannually.
DONATIONS & MEMBERSHIP
International Peace Observers Network e.V.
PURPOSE: ‘Observer‘
Registered non-profit institution; donation receipt and supporting
membership possible.
SWIFT/BIC-CODE: GENODEM1GLS
IBAN: DE40430609671119085800
BANK: GLS Gemeinschaftsbank, Germany
EDITORIAL DEADLINE
vol. 5, number 1: 15th April 2013
FINANCIAL SUPPORT
Stiftung Umverteilen; not responsible for the content.
The findings, interpretations, and conclusions expressed in this
paper are entirely those of the author(s), they do not necessarily
represent the views of IPON.
This work is licenced under the Creative Commons Attribution
3.0 Germany Licence. To view a copy of this licence, visit
http://creativecommons.org/licenses/by/3.0/de/.
Reprints are welcome, please send us two copies.
CONTENTS
Editorial 3
4
6
12
16
‘ ‘ 20
24
29
32
34
38
42
44
47
47
OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012 3
On the 15th of October 2012, the
Moro Islamic Liberation Front (MILF)
and the Philippine Government sig-
ned the Peace Framework designed
to end the 40 years lasting civil war
in Mindanao, southern Philippines.
The war dominated the international
news coverage of the archipelago for
too many years.
In case that the official peace agree-
ment will be signed in December 2012
and if it will actually be implemented,
it would be an important leap for-
ward.
This issue seeks to analyse to which
extend the Philippines have really
made progress in the implementati-
on of human rights, as required by
binding UN covenants. How does the
implementation of international and
national law look like in reality on a
worldwide level? Are they worth the
paper written on?
Bruns opens this issue by looking into
basic framework conditions for de-
mocratic coexistence within a society
on a theoretical level. In his brief ana-
lysis, the philosopher identifies inter-
cultural stumbling blocks that strugg-
le for power.
Werning goes into detail and descri-
bes the political power structure in
the Philippines along the terms ‘guns,
goons and gold‘. He takes the insuf-
ficient legal proceedings against the
responsible of the Maguindanao mas-
sacre as an example to illustrate his
point.
The fact that real implementation
foremost depends on political inte-
rests in the Philippines is further de-
veloped by Keienburg, who looks at
the progressive Philippine legislation
with regards to the protection of indi-
genous peoples. Although impressive,
he argues that the bill was never me-
ant to be truly implemented. The case
study of a small indigenous group
struggling for the recogniton of their
ancestral domain clearly highlights
the ineptitude, unwillingness and fai-
lure of the Philippine state to look af-
ter law and order.
Reckordt as well as Shirali confirm the
ineptitude of the Philippine state to
protect the indigenous communities.
Mining activities on ancestral do-
mains and the national counter insur-
gency programme ‘Oplan Bayanihan’
both make a point on how political
and economic interests conflict with
and often overrule national laws.
Tiepmar and Trötzer illustrate the
extent to which the state seems inca-
pable of providing justice to farmers
who peacefully fight for their land
rights using the example of the natio-
nal land reforms.
As land seems to be at the centre of
power struggles, it is not surprising
that large-scale land acquisitions on
a worldwide level often go along
with serious human rights violations.
Bauer argues that the rights of mino-
rities or other vulnerable groups are
often the first to be disrespected.
This can be seen in Europe as well.
Andres describes how migrant wor-
kers – often refugees without papers
– are exploited by owners of planta-
tions. Their living and working condi-
tions in the agricultural sector remind
us of those of former slaves.
In fact, although it is widely acknow-
ledged that conventional slavery has
been banished from this globe, this is
not entirely true. Schedler‘s detailed
article about Mauretania clearly
shows that the abolition of slavery is
a myth that needs to be contested.
Coming out of a bloody civil war, the
Nepali state is still having problems
addressing human rights violations
during the dictatorship and of to-
day. Despite extensive constitutional
rights impunity prevails, as Gautam
reports.
The actual implementation of laws
does not always coincide with reali-
ty. This is not only true for so-called
failing or failed states; it also regards
so-called progressive countries such
as Italy. A lot needs to be done.
CALL FOR ARTICLES
Call for articles until April 15th,
2013 (editorial deadline).
The next issue will consider the
following question:
Is it still appropriate to attribute
the protection of human rights
only to nation states?
The increasing importance of
other stakeholders has recently
been emphasized in connection
to human rights issues.
EDITORIAL
16 OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012
Gregor Keienburg1982 (Essen/Germany), Diploma in Music, College
Human rights observer with IPON 2012/13.
The need to redress the injustice to-
wards the Indigenous Peoples
Many Filipinos suffered during the coloni-
al rule of the Spanish and American empires.
Under Spanish rule, many of the indigenous
people were able to avoid contact and att-
empts of assimilation by retreating to inac-
cessible mountainous areas, particularly on
the island of Mindanao and in the Cordillera
region. However, this radically changed un-
der American colonial policy as is well reflec-
ted in a statement of then American president
William McKinley who announced a policy
of ‘benevolent assimilation‘ for the native
Filipinos in 1898. As part of this campaign,
English was imposed as the official language
of the Philippines. Today the Philippines are
the 4th biggest nation of English speakers in
the world.
The Spanish had implemented the Regalian
doctrine in the Philippines as well as in many
other colonies, notably in South America.
According to this rule all public land belongs
to the state. The US retained that policy and
enforced it through various land acts in the
early 1900s. These laws proved to be particu-
larly devastating for the Indigenous peoples
(IP) as it was contradictory to their customa-
ry practice of shared revenue. The concept of
distinguishable private property had not exis-
ted in their communities. This made it easy for
the American occupiers to declare all the lands
inhabited by Indigenous peoples as property
of the state. The most grave example are the
Public land Acts of 1913,1915 and 1925 through
which the whole island of Mindanao – hosting
the largest number of IP communities in the
Philippines - was declared as unoccupied land
and hence state property. These ’public lands’
were made available to homesteaders and cor-
porations regardless of the occupancy by the
Indigenous peoples. After the American occup-
ation had ended in 1946, the Regalian doctrine
was maintained in the Philippine constitution
1987. Furthermore, a presidential decree un-
der Marcos declared all lands with a slope of
18 percent or more as public lands. This gra-
vely affected the IPs of the Cordillera region,
where there is almost no land with a slope of
less than 18 percent. After Marcos had been
toppled down during the EDSA revolution in
1986 and the republic had stabilized under
presidents Aquino and Ramos the latter passed
the IPRA during the end of his second term in
office. Critique of the law - and the seemingly
powerless government institution that came
with it – soon began to rise among the indige-
nous communities.
The conception of Indigenous Peoples
rights act (IPRA)
Modeled on the UN Declaration on the rights
of Indigenous peoples, IPRA was considered
a progressive and exemplary law at the time
of its conception. When the law was passed in
1997 many IPs put great hope in it. It was the
first time that the specific needs and claims of
the indigenous Filipinos – such as their custo-
mary law, principles of community and religi-
on - were addressed. By now, 15 years later,
perception has drastically changed. The central
issue – as well as the main focus of critique –
revolves around the recognition of ’ancestral
domains’ as established in the law. The term
defines a certain area of land that has been
continuously inhabited by a group of indige-
BLESSING OR CURSE? –
THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997 AND
ITS IMPLEMENTATION
1
1) The information used in this article was acquired through research and interviews. It reflects the authors opinion and interpretation of the gathered facts.
OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012 17
nous people since ’time immemori-
al’ (1997: Chapter II, section 3a). If a
Certificate of Ancestral Domain Title
(CADT) is granted, the indigenous
community will not only own the land
rights to that area. It is also allowed to
implement its customary law as long
as it does not conflict with the essence
of the Philippine Constitution. Along
with the law, a National Commission
on Indigenous Peoples (NCIP) was ins-
talled with the sole purpose of imple-
menting IPRA.
A flawed law implemented by
an incompetent government
agency?
Critique and discontent among the IPs
have accompanied IPRA ever since its
conception. In 2003, the Commission
on Human Rights (CHR) published a
paper by Erlinda M. Burton on the
indigenous groups in the province
of Bukidnon with a focus on ances-
tral domains. The conclusion of that
paper was not favorable for the NCIP
(Burton 2003). Burton points out that
in the first four years of the IPRA im-
plementation, out of 80 applications
for CADT in Northern Mindanao, only
nine were processed and only three
were approved. The paper goes as
far as to attest a general incapacity
and incompetence to the NCIP and its
staff:
’There was a lack or absence of
clear leadership that has led to the
poor performance of the agency’s
policymaking and adjudication
duties and the coordination in the
delivery of basic services.
NCIP’s present structure and staff
have impelled the institution from
carrying out its duties/functions.
NCIP officials are by in large not
qualified or trained with necessa-
ry skills to meet its mandate un-
der the IPRA.
There were manifestations that
the processes of issuing titles and
certificates to allow mining and
other activities have been com-
promised if not corrupted.
Past policies and decisions have
been prejudicial to the operations
of NCIP and should be identified
and changed to better serve in-
digenous communities.’ (Burton
2003: 23)
Another problematic issue of IPRA
discussed in that paper is the so-called
free and prior informed consent
(FPIC). If an Indigenous People is reco-
gnized as the traditional inhabitants
of a certain area of state property,
they are granted with Native Rights,
IPON | The group PADATA is fighting for its rights as indigenous people, Bukidnon, Mindanao.
18 OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012
even if they have not aquired the official title
of ancestral domain. This means, that all use
of that land by a third party is conditional on
the free and prior informed consent of the
Indigenous People.
IPRA as an additional source of con-
flict
Since 2011 IPON has been working with a tala-
andig tribe organisation called Panalsalan-
Dagumbaan-Tribal-Association (PADATA) in
Bukidnon, Mindanao. (cf.: Knappmann 2012)
Because of their peaceful struggle to regain
the use of their ancestral land from the pri-
vate rancher Ernesto Villalon, the members of
PADATA have been victims of various crimes,
committed by the ranchers private security gu-
ards. Since the contested land is government
property, the rancher has to lease it from the
government. For that purpose, a license is re-
quired and since Indigenous People are invol-
ved, an FPIC by the IPs is mandatory for the
granting of that licence.
According to PADATA, a ’dummy tribe’ was
created, who would claim the area as their
ancestral land, only to give their FPIC to the
prolonging of Mr. Villalons license. That this
fake FPIC was at first approved by the NCIP is
a clear example of how problematic IPRA is
in reality. In this example, the very law that
should protect the Indigenous people helped
to legally make them squatters in their own
land. Only after one of the PADATA-members
got murdered by the Villalon security guards,
the NCIP reinvestigated and revised the fake
consent. In approving the fake consent in the
first place, the NCIP - contrary to its mandate -
did not represent the interests of PADATA but
further sparked an already intricate situation
with catastrophic results for the IPs. After his
licence was revoked, the rancher made an ap-
peal, still leaving the conflicted area in a dubi-
ous state. Meanwhile an ambiguous status quo
order maintains an insecure peace in the area.
Today’s perception of IPRA and the
NCIP
The perceived incapacity of the NCIP is also
reflected in recent statements from within
the IP community. Indigenous Filipino author
IPON | The right way to go – The Commission on Human Rights (CHR)is naming and shaming those who commit human rights violations.
OBSERVER: A Journal on threatened Human Rights Defenders in the Philippines | Volume 4 | Number 2 | 2012 19
Gali Dodoy Gumaling calls it ‘the
National Commission on Indigent
People’ (Gumaling, 2012) referring
to the NCIPs vagabond status among
government agencies and its insuf-
ficient, insecure and unpredictable
funding. The NCIP has in fact been
assigned and reassigned to various
government agencies and funds since
the time of its installment.
’IPRA and the NCIP appear not to be
protecting the Indigenous Peoples
rights of which they are called to do
so. Instead, they are facilitators for
mining, logging and timber permits
and other big companies entering in
IP areas.’ (Claver, 2010)
This statement is shared today by
many IP-organizations. Some of them
even completely turned their backs
on the NCIP and have instead star-
ted focusing on the Department of
Agrarian Reform (DAR). Although still
a slouching, ailing snail of a process,
the ongoing land reform might actu-
ally provide at least some of the IPs
with land titles, thus being more pro-
mising to them than IPRA. As land is
so deeply entangled with the indige-
nous way of life and their economic
concept of shared revenue, it is easy
to understand why IPs feel so disap-
pointed about the IPRA. Indeed, many
consider it redundant due to its inef-
fectiveness.
On the 9th August 2010, the interna-
tional day of the world‘s Indigenous
Peoples, the Task Force on Indigenous
Peoples Rights (TFIP) submitted a
paper to the newly elected presi-
dent, Beningno Aquino. This paper
addressed various issues and prob-
lems concerning the IPs, such as the
NCIP and ancestral domain claims.
Two years later, on the very same day,
the TFIP published an open letter to
President Aquino stating their disap-
pointment about their current situa-
tion and about the fact that the pre-
sident had not yet responded to their
paper.
Erwin Marte, member of the Bukidnon
tribe and its Council of elders in
Malaybalay, Bukidnon, confirms that
IPRA is now even regarded as a mere
instrument of appeasement with
which the Philippines simply respon-
ded to international pressure in the
late 1990s, but with no sincere inten-
tion of ever seriously implementing
the law. A thought that might be well
reasoned considering the positive re-
actions IPRA initially garnered among
international organisations on the
one hand and its doubtful results on
the other hand.
SOURCES
Mindanao Culture, Xavier University, Cagayan de Oro, Philippines, p.23.
NEWSTICKER +++
down 23 houses; incidents are
reported to the local police on
the same day
families
Prosecutor renders a resolution
stating the case as probable
cause
Arrest against 14 security
guards is issued
14 accused are arrested
Warrant of Arrest has not
Conference Meeting is held at
the regional police headquarter;
++++++++++